Drakes Bay oyster farm seeks court order to allow it to continue operation

The owner of the Drakes Bay Oyster Co. is seeking a restraining order against the federal government to keep his farm in operation beyond the 90 days that has been granted by the secretary of the interior.

Owner Kevin Lunny — working with a legal team and with Cause of Action, a Washington, D.C.-based nonprofit — has already filed a separate lawsuit challenging the merits of the decision that shuts down his operation.

The latest filing, made Wednesday in U.S. District Court in San Francisco, asks the court to halt Interior Secretary Ken Salazar's order to have all of Lunny's equipment and structures removed by Feb. 28, 2013.

The restraining order seeks to allow the oyster farm to continue operating while the main legal issue is decided. A date for a judge to hear the restraining order request has not been set.

Primary among the allegations in the main lawsuit is that the federal government failed to follow federal National Environmental Policy Act requirements as it prepared an environmental impact statement because it didn't provide the public with a "meaningful opportunity to comment" on it.

It also attacks the science used to show that the oyster operation was environmentally harmful to Drakes Estero — the 2,200-acre area where the oysters are grown — and that false information was given by park service employees. The suit also alleges that the due process clause in the U.S. Constitution was violated.

On Nov. 29, Salazar announced he would allow a 40-year lease — originally negotiated with the Johnson Oyster Co. in 1972 — to expire. In 1972 the federal government bought the land from Johnson for $79,200 and provided the lease.

Lunny took over the lease in 2004. Salazar wrote in his decision that Lunny was explicitly informed "no new permit will be issued" after the 2012 expiration date.

Lunny has maintained there is wording that provides for a 10-year extension and that a provision under a state Department of Fish and Game agreement could continue the lease until 2029.